Summary
affirming Family Court order giving father decision making authority with respect to all medical matters after mother failed to demonstrate that her opposition to immunizing the child was based on genuinely and sincerely held religious beliefs
Summary of this case from In re Proceeding Under Article 10 of the Family Court ActOpinion
63 A.D.3d 1058 885 N.Y.S.2d 84 In the Matter of Kenneth BINNS, respondent, v. Tanya BOYD, appellant. 2009-05333 Supreme Court of New York, Second Department June 23, 2009
Yisroel Schulman, New York, N.Y. (Christina Brandt-Young of counsel), for appellant.
Kenneth Binns, Maplewood, New Jersey, respondent pro se.
WILLIAM F. MASTRO, J.P., ANITA R. FLORIO, RANDALL T. ENG, and JOHN M. LEVENTHAL, JJ.
In a child custody proceeding pursuant to Family Court Act article 6, the mother appeals, as limited by her brief, from so much of an order of the Family Court, Kings County (Hepner, J.), dated March 31, 2008, as, upon an order of the same court (Gonzalez-Roman, Ct.Atty.Ref.), also dated March 31, 2008, which, inter alia, after a hearing, found that she failed to show by a preponderance of the evidence that her opposition to immunization was based on her genuinely and sincerely-held religious beliefs, directed that the father is to have the final decision-making authority with respect to all medical matters involving the child when the mother and father are unable to reach an agreement after reasonable negotiation and consultation.
ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements. " ‘ [R]esolution of issues of credibility, as well as the weight to be accorded to the evidence, are primarily questions to be determined by the trier of fact, which saw and heard the witnesses' ( Matter of Kevin M., 6 A.D.3d 616, 774 N.Y.S.2d 811; cf. People v. Larkin, 260 A.D.2d 403, 688 N.Y.S.2d 184). Its determination is accorded great weight on appeal and should not be disturbed unless clearly unsupported by the record ( see Matter of James G., 309 A.D.2d 935, 766 N.Y.S.2d 100; Matter of Dennis G., 294 A.D.2d 501, 742 N.Y.S.2d 858)" ( Matter of Mikhail V., 12 A.D.3d 375, 375, 783 N.Y.S.2d 314). Upon the exercise of our factual review power, we find that the Family Court's determination to award the father final decision-making authority with respect to all medical matters involving the child when the mother and father are unable to reach an agreement after reasonable negotiation and consultation is supported by the record ( see Matter of Desilets v. Desilets, 262 A.D.2d 482, 483, 691 N.Y.S.2d 318).
Contrary to the mother's contention, the findings of the court attorney referee that her opposition to immunizing the child was not based on genuinely-and sincerely-held religious beliefs were not impermissibly tainted by considerations prohibited by the First Amendment. The mother's remaining contention is likewise without merit.
We note that the father's contention that this appeal has been rendered academic because the child has been immunized is without merit.